Tag Archives: NW Sidebar

Post navigation

The following post is a good reminder that your law degree can be used for more than practicing law.

If 2019 finds you evaluating your career options, read on. Follow-up by contacting the attorney counselors at the OAAP who can meet with you one-on-one or refer you to career resources, including CLEs.

While it is rare for opposing counsel to go MIA, it does happen. What steps should you take? Can you contact the adverse party directly?

Cut and dried rule

Oregon RPC 4.2 and Washington RPC 4.2 make no bones on this point. Direct contact with an adverse party is not permitted if you know the party is represented. Exceptions are made in the case of consent, court order, if “authorized by law,” or when a notice must be sent directly to a party pursuant to a written agreement.

What to do

Remember that non-communication from opposing counsel may be a deliberate strategy or delaying tactic. While lawyers have ethical duties of communication and due diligence toward clients, there is no specific rule requiring lawyers to respond to one another.

Make repeated efforts at contact. Warn opposing counsel of the consequence of continued nonresponse (you will contact the adverse party directly). Document your efforts.

Wait a reasonable amount of time.

Seek a court order if possible.

Otherwise, consider if the circumstances have abrogated your initial knowledge of representation. As Schilling points out, to “know” is to have “actual knowledge” under the rules. Your “actual knowledge” may be inferred from the changed circumstances (repeated attempts to contact, warnings to opposing counsel, and counsel’s nonresponse).

If you make direct contact with the adverse party, make sure you tell them to refer the communication to their attorney if they are still represented, and ask for documentation of termination if they say they aren’t.

I would add: at any point along the way feel free to use the Oregon Ethics Hotline:
1-503-431-6475 or 1-800-452-8260.

In law, negotiations between parties can end in a win-win for both sides or they can break down and leave your client further from their objective. It’s a delicate dance that requires a clear understanding or your client’s needs and desires as well as those of the opposing party.

Before the Beginning

You can’t focus on your client’s goals if you don’t know what they are. Negotiation is a serious subject. If possible, meet with your client in person. Be open to what the client has to say, but be prepared to curb his expectations.

If there are boundaries you feel you can’t cross, speak up.

Identify and verify lienholders and others who may have third-party rights to settlement proceeds.

Compile your costs to date (and likely future costs).

Use this information to discuss the difference between gross and net settlement values. Give concrete examples.

Allow the client time to think even if it appears you’ve come to a mutual understanding about how to proceed.

During Negotiation

During negotiation, keep the client informed. Technically, it may not be necessary so long as you are operating within your settlement authority. However, keeping the client involved will give her a better picture of the overall process.

After Negotiation

Don’t stop at confirming agreements with opposing counsel. Confirm the client’s consent to settle in writing! Let the client know the likely ETA of the settlement proceeds and what the disbursement process will involve (for example, waiting for a check to clear). Provide a written settlement accounting. A sample settlement accounting and checklist is available on the PLF website. Select Practice Management > Forms > Litigation.

In Cox v. Alliant Insurance Services, Inc., 2017 WL 4640452 (E.D. Wash. Sept. 19, 2017) (unpublished), the plaintiffs sought to disqualify the opposing law firm based on a conflict of interest. One of the plaintiffs argued that he was a former client of the firm on a substantially related matter, necessitating the law firm’s withdrawal.

The plaintiff’s contact with the firm was as a representative for a corporation. In concluding that no attorney-client relationship existed between the plaintiff and the law firm, the court relied on two key points:

The law firm and corporation executed a written engagement agreement that identified the corporation (and not the individual) as the client in the matter.

The plaintiff failed to introduce contradictory evidence, i.e., he could not point to any communication or action by the firm which expanded the attorney-client relationship to include him individually as a client.

Lessons Learned

As we discussed in the CLE, Limiting Exposure to Conflicts, identifying your client and clarifying the client’s status (prospect, current client, or former client) is paramount to conflict screening and limiting your potential liability. The single best tool at your disposal? Written engagement, disengagement, and nonengagement letters – all of which are available at the Professional Liability Fund website.

But the law firm inCox didn’t stop at the engagement letter. Firm members were also consistent in their actions toward the corporate representative. There was no evidence of emails, correspondence, or other communication supporting that the corporate representative was an individual client of the firm.

The moral of the story? A solid engagement letter is a small investment to make in the realm of thwarting conflicts and liability. Even better: maintaining consistency in your corporate communications.

So where can Oregon lawyers go for answers? The best resource can be found on the Professional Liability Fund website. Select Practice Management > Forms > File Management > File Retention and Destruction Guidelines.

Files should be kept for a minimum of 10 years as protection against legal malpractice claims. To learn more about ethical recordkeeping practices, see Ethical Guidelines for Client Files.

Consider the nature of each case (some immigration cases may be “live” 20 years from the time of initial representation)

Weigh the possibility of malpractice or discipline claims

In Oregon, the latter drives the minimum 10 year retention recommendation.

Multi-Jurisdictional Practices

Lawyers who practice in both states (or other states) may choose to keep files in conformance with each jurisdiction’s recommended practices or apply the strictest retention requirement. Universal retention practices are easier to follow and enforce. Jurisdiction-specific retention practices may allow for earlier disposal of files.